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THE 



Proprietary Title of the Penns. 



Eepeinted from the American Law Register for 
August, 1871. 



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THE 

PROPRIETARY TITLE OF THE PENNS. 



As the last of the male descendants of William Penn has 
recently deceased, it becomes interesting to review the course of 
transmission of the title to the soil of Pennsylvania, vested in 
William Penn in fee, by charter of Charles II., dated the 4th of 
March 1681. 

William by his -will, after devising ten thousand acres in the 
province for the three children of his deceased son William, and 
ten thousand acres for his daughter Aubrey, devised all his lands, 
tenements, and hereditaments, rents, &c., in Pennsylvania and 
territories thereunto belonging, or elsewhere in America, unto 
Hannah his wife and others, and their heirs, in trust, to sell and 
dispose of so much thereof as might be necessary to pay his 
debts ; and all the rest of his lands and hereditaments whatso- 
ever, situate, lying and being in America to convey to his 
children by his present wife, in such proportions and estate as 
she should think fit. This will he confirmed 27th of 3d month 
1712; and it was proved 3d November 1718. See Will Book, 
Philadelphia, No. I., p. 238. 

William Penn left children by his wife Hannah, four sons, 
John, Thomas, Richard, and Dennis, and a daughter Margaret. 
Hannah Penn, after the death of Dennis in his minority, by deec^ 
of January 7th 1725 appointed and directed conveyance of one-- 



half the province of Pennsylvania and of the three lower counties 
unto John Penn, her eldest son, and the other half equally to 
her sons Thomas Penn and Richard Penn, in fee. 

June 24th 1735, Samuel Preston and James Logan, the sur- 
viving trustees, released said estates to John, Thomas, and Richard 
Penn. 

On the 8th May 1732, the said three proprietaries, then owners 
in fee, executed articles covenanting with each other, binding 
themselves respectively to devise their shares to the eldest son in 
tail male, remainder to other sons in like manner ; and if any 
should die without issue male, his share should go to the survi- 
vors or survivor and heirs as he should appoint ; and if no 
appointment should be made, then it is to go equally to the sur- 
vivors and their heirs male ; chargeable in either case with provi- 
sions for widows and daughters. And if either of said parties 
should die without any issue he is to appoint his share or estate 
to the other of said parties or either of them as he should think 
fit, with power to charge certain sums thereon. And if either 
should die without any appointment, then his share is to go to the 
survivors or survivor and heirs, subject to charges in favor of any 
widow, and of half sister Letitia Aubrey, widow, and the children 
of whole sister Margaret Freame. With power of revocation by 
all, or by the survivors of one dying without issue male, but 
without prejudice to appointments made by deceased. 

On the 24th October 1746, the said John Penn made his will, 
which was proved September 1st 1747. He died unmarried and 
without issue in 1746. See Will Book II. p. 295. He devised 
his moiety of Pennsylvania and of the three lower counties (now 
state of Delaware) unto his brother Thomas Penn for life, and 
after his death to the first son of Thomas in tail male, and in 
default of issue, to the second, third, fourth, fifth, and other sons 
according to priority of age in tail male ; and in default of such 
issue, then to his brother Richard Penn for life, remainder to 
Richard's son John for life, and to the first son of the latter in 



[3] 

tail male ; and in default to other sons of his said nephew John 
Penn, according to priority of age in tail male ; and then in like 
manner to his nephew Richard son of his brother Richard, and 
his sons ; and in default of such issue, then unto the other sons 
of his brother Richard according to seniority of age in tail male. 
In default of such issue male, then unto his brother Thomas Penn 
in tail general ; and in default, &c., unto his said nephew John 
Penn in tail general ; and in default, &c., unto his said nephew 
Richard Penn in tail general ; and so as to his brother Richard's 
other sons successively. With remainder to Richard's daughter 
Hannah for life, and to her sons successively in tail male ; and 
then to her in tail general ; and in default of such issue then to 
his brother Richard in tail general ; and in default of such issue 
unto, his sister Margaret Freame for life, and then to her sons in 
tail male, &c., &c. 

The said will of John Penn, son of the first proprietary, 
empowered the tenant in possession of his moiety of the province 
and lower counties to convey and grant lands, of any estate how 
large soever, reserving by each grant of any lands as much quit- 
rent in proportion and the like services as had lately been gene- 
rally reserved on other lands granted out by himself and brothers, 
&c., the purchase-moneys and fines to go to the possessor ; the 
quit-rents to descend and go according to the limitations of the 
will. 

By articles of agreement between the surviving sons of the 
first proprietary, made January olst 1750, Thomas and Richard 
Penn confirmed the articles of 1732, and they made the like power 
of sale in fee as in John Penn's will, applicable to their respec- 
tive fourth parts of the province of Pennsylvania, &c. And by 
further articles between them it was agreed that if either should 
leave no issue male, but issue female, the latter should take their 
father's share before all or any of the issue female of the other. 

Richard Penn, son of the first proprietary, made his will, 
dated 21st March 1750, with several codicils, and died in 1771, 



[4] 

leaving sons John Penn (called the elder) and Richard Penn, and 
daughter Hannah ; and devised his share of Pennsylvania to his 
son John Penn for life ; remainder to John's sons successively in 
tail male ; with further remainder to his son Richard Penn for 
life, and remainder to Richard's sons successively in tail male, 
&c., with further remainder to his son William Penn in tail male, 
and to William's sons successively in tail male, &c., with 
remainder to testator's brother Thomas for life, remainder to his 
sons in tail male ; with further remainders to testator's sons John, 
Richard, and William, and other sons for estates tail general, 
&c., &c. With the like power as in his brother John's will, for the 
person in possession to grant and convey in fee. William, the 
third son, died in the lifetime of his father without issue. 

Said Richard Penn, the testator, left two sons, John Penn, 
called the elder. Governor of Pennsylvania before the Revolution, 
who died in 1795, without issue ; and Richard Penn, Avho died 
in 1811, leaving sons, William and Richard, both of Avhom died 
without issue ; William in 1845 or 6 ; Richard in 1863 ; whereby 
the male heirs of Richard Penn became extinct. 

Thomas Penn, second son of the first proprietary, on the 15th 
August 1751 executed a deed of release as a marriage settle- 
ment with Julianna, daughter of the Earl of Pomfret, unto 
David Barclay and Thomas Hyam, conveying his fourth of 
Pennsylvania and the lower counties, whereby an annual charge 
was to be raised for her for life ; reciting the preceding articles, 
to the use of said Thomas Penn for life ; remainder to the use of 
liis first and other sons severally and successively, according to 
priority of birth in tail male, &c., &c,, and in default of such to 
his brother Richard Penn for life ; remainder to his son John for 
life, and then to his sons in tail male successively ; remainder to 
Richard's son Richard for life, and then to his sons in tail male 
successively; remainder to Richard's son William, and sons in 
like manner ; remainders to the heirs of the body of said Thomas 
JPenn (the grantor). With a power of sale in said Thomas Penn 



[5] 

and others in possession for the time being, to sell and convey in 
fee, as in his brother John's will. 

Thomas Penn died in 1775, leaving sons John and Granville. 
This John Penn (called the younger) erected and lived in the 
mansion, called " Solitude," in the present Fairmount Park in 
Philadelphia, and died in 1834, without issue. Granville died 
in 1844, leaving issue Granville John Penn, who became tenant 
in tail male of three-fourths of the Pennsylvania titles under 
the above limitations ; and after his death in 1867, his younger 
brother Thomas Gordon Penn took the same shares as tenant 
in tail male ; and he died without issue in 1869. Thus the issue 
male of Thomas Penn, son of the first proprietary, because 
extinct. 

Thomas Penn left two daughters : Juliana Baker, who left 
only a daughter, the Countess of Ranfurly, and Sophia Marga- 
retta, who married William Stuart, Archbishop of Armagh. 
She died a widow in 1847, leaving four children, William, Henry, 
Mary Juliana, and Louisa. William Stuart is the tenant in tail 
general of the estates limited by the deeds and wills of the three 
sons of William and Hannah Penn. 

The preceding limitations are now material only as to lands 
within the proprietary manors, and the rents thence issuing. 
The Act of 27th November 1779, 1 Sm. Laws 479, which vested 
in the Commonwealth of Pennsylvania the lands of the proprie- 
taries, for a compensation made, excepted the private estates, 
and the proprietary tenths or manors, with the quit or other 
rents reserved within the manors. One of these manors, 
Springettsbury, was immediately north of Vine street, Philadel- 
phia, and several others existed in different parts of the state. 

It is a question undecided here how long the power of sale in 
fee, Avith which the tenants in tail male Mere clothed, continued 
in force ; but as it is not in restraint of alienation, but favors it, 
the power probably continued in all the tenants in tail male. 

" It is settled, that an unlimited power of sale, to be exercised 



[C] 

during successive estates tail, is not invalid for remoteness, for 
such a power may be destroyed Avith tlie estate tail :" Hill on 
Trustees 475 ; 4 Sim. 135, 138 n. ; 3 M. & R. 249 ; 10 Sim. 
225 ; 15 Sim. 353. 

In 1799 the act was passed to bar entailments by deed express- 
ing that purpose, acknowledged and recorded in court, and also 
recorded in the office for recording d©eds within six months. 

But deeds were made by the Penns after that date, without 
observance of the forms of the act, though generally it was 
otherwise ; and without the reservation of any quit-rent, which 
the power of sale required. 

General Thomas Cadwalader received the power of attorney 
of John Penn, of Stoke Pogis, in 1815; and of William Penn, 
son of Richard Penn, in 1817, then tenants in tail male, to 
make sales of their lands in Pennsylvania; and in 1831, 
February 17th, he as their attorney made a deed of confirmation 
to Thomas W. Norris, Esq., for debarring every estate tail for 
grounds, before conveyed by numerous conveyances, within the 
manor of Springettsbury, in trust for all the purchasers : Deed 
Book A. McC. 6, p. 628. The question as to this would be 
whether the attorney would be authorized to make this confirma- 
tion as to lands he had not himself conveyed ; though, perhaps, 
the court would presume after the lapse of time, that he had 
acted under instructions to that efi'ect. He no doubt represented 
the honorable and just feelings of his constituents to make 
secure all the titles they had conveyed. 

The final and complete act to confirm all titles made by the 
agents of the Penn family, was that of the present representa- 
tive, and tenant in tail, of all the shares, under the advice of his 
counsel in Philadelphia. By deed of 11th November 1870, 
from William Stuart, Esq., and wife, to William Levi Bull, 
Esq., reciting himself as heir at common law in tail of John 
Penn the elder and John Penn the younger, Thomas Penn and 
Richard Penn or some of thera by sundry deeds, wills or descents ; 



[7] 

and reciting former grants made by them of lands, tenements, 
&c., in the Commonwealth, by deeds insufficient to debar entail- 
ments, which grants the said William Stuart is desirous of con- 
firming, he proceeds, for one dollar, to grant, for the purpose of 
debarring the entailment, " all and singular the lands, tenements, 
and hereditaments in the said Commonwealth, which the said 
John Penn the elder, John Penn the younger, the said Thomas 
Penn, the said Richard Penn, or any subsequent tenant in tail 
thereof, severally and respectively, either by themselves or their 
attorneys in fact have granted and conveyed to divers persons, 
for a full and valuable consideration, intending to grant and con- 
A'ey such premises to the purchasers in fee simple," to hold the 
same " to the use of every such purchaser or purchasers and 
their heirs and assigns, so as to enure to the benefit of all persons 
holding or claiming any estate, title, or encumbrance in or upon 
any such lands, tenements, and hereditaments, derived or created 
by or under any bond fide purchaser for a good and sufficient 
consideration from the said tenants in tail respectively, for the 
time being as aforesaid, with the intent that all such grants and 
conveyances by them or any of them so heretofore made, be 
hereby absolutely ratified, confirmed, and established." Acknow- 
ledged in the Supreme Court of Pennsylvania, March 9th 1871, 
and recorded in Deed Book J. A. IL, No. 123, p. 442. 

Here is an act quietly done, and unknown except to a few 
individuals, of historical interest, and of great beneficence, and 
which fittingly crowns the honorable dealings of all the Penn pro- 
prietaries with their settlers and successors. For more than a cen- 
tury, few even in the legal profession have understood the precise 
nature of the title and the powers of the Penns to the soil in 
Pennsylvania ; and they have always been so honorably repre- 
sented as to give to settlers and purchasers entire confidence 
without inquiry into the wills, articles of agreement, and marriage 
settlements of the family, few of which were of record or accessi- 
ble within the province or state, and were first got together and 



[8] 

printed by William Henry Ra\Yle, Esq., in 1870. It was not 
known until then what would be the disposition of the heir coming 
through a female branch, whether to attempt to take advantage 
of defects and omissions or to confirm titles made by his prede- 
cessors, because he was wholly unknown to us. The deed above 
recited sufficiently proves that to William Stuart, Esq., we owe 
thanks and gratitude, and that we should hold his name and 
memory in honor, in common with all the Penns in their rela- 
tions with the people of Pennsylvania. 

Eli K. Price. 



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